Intellectual Property Legislation

South Africa's Proposed Copyright Legislation Aims to Increase Access to Information

By Jessie Taylor

The National Assembly has passed the Copyright Amendment Bill. The legislation seeks to update South Africa's copyright laws. Among the changes in the proposed legislation are clauses that will allow increased access to copyrighted works for education purposes, as well as make them available to people with disabilities.

Promoting Fair Use Of Copyrighted Works

The Bill was introduced to Parliament by the Department of Trade and Industry in 2017 with the aim of modernising South Africa's copyright laws. These laws have been in place and largely unchanged since 1978. There has been some opposition to the Bill from the creative industries.

ReCreate, a copyright advocacy group, has declared its support for the South African Copyright Amendment Bill and supports the notion of "Fair Use and Fair Royalties". The organisation believes the reforms to existing copyright legislation, which it describes as "outdated and unconstitutional" are long overdue.

ReCreate represents organisations including BlindSA, the South African Democratic Teachers’ Union, the Congress of South African Trade Unions (COSATU), the South African Guild of Actors (SAGA), WikimediaZA, Scholarly Horizons, which advances research integrity and reputable knowledge reproduction, and Artists Unite, among others. According to ReCreate, the Copyright Amendment Bill will benefit authors and give them more control over their works, more protection in contracts and better terms of assignment, as well as fairer royalties.

One of the changes the new legislation will bring is a clause allowing for a 25-year limitation on the assignment of rights. This could result in the rights of sold works reverting back to the owner. "This is a fair period for rights holders to benefit from their investments in these works. South Africa decided on a period of 25 years for assignment of copyright, because its term is 50 years after the author’s death. The US period of assignment is 35 years because their copyright term is 75 years or more than that of South Africa."

Another change is the introduction of the fair-use principle. This principle allows the free use of copyrighted works in certain circumstances, such as research or teaching. However, it is the onus of the copyright holder to prove that the use of their work does not constitute fair use.

"Fair use has four deciding factors before anything can be copied. Not everything that is copied will meet these criteria. Fair use in the Copyright Amendment Bill is in line with the US fair use provisions and those of some 12 other countries that benefit from fair use in their copyright law and which also use the words ‘such as’, except for Malaysia, which uses the word ‘including’ instead. Nigeria adopted the four factors, ‘such as’ in its new Copyright Act of 2022, but still calls it fair dealing," the organisation says.

Making Information Accessible To People With Disabilities

The legislation also includes a clause that will make it possible to convert books into accessible formats without the copyright holder's consent. This will pave the way for people with disabilities to access copyrighted works. For example, converting a book into a format such as Braille, large print, and audio would be accessible to a person who is blind.

"The current Copyright Act has very limited ‘fair dealing’ provisions and few exceptions for research, education or libraries and other information services. It also does not permit copying or course-packs for people with disabilities," the organisation says. "Currently, people who are blind or visually impaired have to purchase the work first, then pay for permission to convert it into Braille and include it in course-packs, which often takes months to do," the organisation said.

Jace Nair, CEO of Blind SA, said the exceptions to transcribing reading material into accessible formats, such as Braille, large print, and audio, will ensure that it is no longer a criminal offence to convert books into accessible formats without the copyright holder's consent.

In 2022, Blind SA, represented by SECTION27, took the Minister of Trade Industry and Competition to the Constitutional Court to challenge the constitutionality of the Copyright Act for the way it discriminated against persons who are blind and visually impaired.

The Court found the Act to be unconstitutional to the extent that it required persons who are blind or visually impaired to obtain the consent of the copyright holder before being able to convert books and other published works into accessible formats.

Source: SA, News DALRRD, Stats SA